The Crime of Aggression: Still a live issue

6 December 2018 – Liechtenstein hosted a panel this morning at the Assembly of States Parties (ASP) titled “The ICC’s Jurisdiction Over the Crime of Aggression”. This panel sought to discuss the significance and broader context of the crime of aggression. Panelists included IntLawGrrl Jennifer Trahan, Professor at the Center for Global Affairs at New York University, David Donat Cattin, Secretary-General of Parliamentarians for Global Action, and Donald Ferencz, the Convenor of the Global Institute on the Prevention of Aggression. This panel complemented many of the comments that States made at the General Debate session held yesterday that continued after this panel on the activation of the crime of aggression.

Many States Parties made supportive statements on the activation of the crime of aggression during the General Debate on Day 1 that continued after Liechtenstein’s panel today on Day 2. Austria spoke on behalf of the European Union (EU) in support of the activation of the crime of aggression, and all EU member states commented that they supported Austria’s statement. Most notably, however, France was quite critical of the Kampala Amendments as promoting division amongst States Parties when the focus should be universality. China as well was critical of the Amendments, stating that the International Criminal Court (ICC) should not undermine the Security Council, as it is this body that is responsible for upholding international peace and security. Given that China is a permanent member of the Security Council and is not a party to the ICC, this comment is not surprising. Many states commented that they are in the process of ratifying the Amendments, which was a welcome announcement, including Paraguay and Greece.

During the panel, Jennifer Trahan began the discussion with an analysis of the text of Article 8bis of the Rome Statute which enumerates the crime of aggression. As discussed in my previous post, Trahan stated that the language in Article 8bis derives from the London Statute of the Nuremberg Tribunal and that the crime of aggression is not meant to encompass all violations of Article 2(4) of the UN Charter, but manifest violations. Manifest violations, she clarified, are those that are super clear and not in a grey zone. She also discussed the novel jurisdictional regime that exists within the crime of aggression with regard to state and proprio motu referrals compared to the other three international crimes: non-States Parties to the Rome Statute are completely excluded from the Court’s jurisdiction over the crime of aggression; not all States Parties are covered because they must first ratify the Amendments; and there is an opt-out method for States to opt out of the Court’s jurisdiction over the crime.

Photo credit: coalitionfortheicc.org

David Donat Cattin held a very positive view on the activation of the crime of aggression and discussed some of the progress being made for further ratifications. He referenced the Austrian delegate’s support for the activation of the crime of aggression on behalf of the EU and hoped that this statement would have an impact on other EU member states to encourage their ratification. He also mentioned that the Dominican Republic will be voting on whether to ratify the amendment in the next year. He added that the Central African Republic is likely to join because they are subjected to foreign interference on all sides. He also mentioned that South Africa highlighted the historic significance of the Kampala Amendments at the General Debate, so this may indicate its ratification in the next year.

Donald Ferencz completed the panel with some very engaging comments that started with this statement: “the rule of law is for the little people”. He commented that a state like Liechtenstein, who has ratified the Amendments, is likely not about to commit the crime of aggression, but two permanent members of the Security Council who are also States Parties to the Rome Statute (referencing the UK and France) have not ratified the Amendments. This sends the message that this law/crime is not for bigger states like the UK and France, but is for the smaller states, who are unlikely to be the ones committing the crime in the first place. This was quite an interesting comment in light of France’s statement regarding the Kampala Amendments promoting division at the General Debate yesterday.

One quite interesting debate that evolved out of the panel concerned how to hold state officials liable for the crime of aggression when the state is not a party to the Rome Statute, with specific reference to the Russian invasion of Ukraine. This question was first brought up by Sabine Nolke, Canadian Ambassador to the Netherlands. A few intervenors were of the view that, in the case of Russia, war crimes committed in Ukraine (because Ukraine is a party to the Rome Statute) can be prosecuted and the Court could consider the fact that Russia committed an act of aggression as an aggravating factor in the prosecution of war crimes and in sentencing. Nolke and members of the panel, however, cautioned against this view because it suggests that war crimes committed in non-aggressive wars are less grave or less prosecutable. She and the panelists stressed that war crimes are war crimes no matter the context, and they should not be treated differently based on whether or not there is an aggressive war.

States’ comments during the General Debate and the discussion during this panel indicate that, although there seems to be a large degree of support for the activation of the crime, ratification is still a live issue and questions of jurisdiction are far from settled..

This blogpost and the author’s attendance to the 17th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada